POLPA stage - Park Direct UK in Uxbridge

Thanks gents.

I've got pics below, but a quick question - if I start my case on POPLA do i need to fill it out in one session or can i add to it over time before submitting?

original PCN:
hxxp://i59.tinypic.com/24w6gec.jpg
hxxp://i60.tinypic.com/2dh5ezn.jpg
hxxp://i61.tinypic.com/3305ydu.jpg
hxxp://i61.tinypic.com/n4gyzn.jpg

response from contest letter:
hxxp://i62.tinypic.com/6ood9h.jpg
hxxp://i57.tinypic.com/2gtrrsj.jpg
hxxp://i62.tinypic.com/fyemfn.jpg
hxxp://i62.tinypic.com/kry53.jpg

oops, sorry!

:embarasse

Hi all,

I have drafted my appeal now - based mostly on the POPLAs submitted in these two threads, so firstly I'd like to send a thanks to the posters in those threads! :

hxxp://forums.moneysavingexpert.com/showthread.php?t=4914297
hxxp://forums.moneysavingexpert.com/showthread.php?t=5171333

I have pasted my appeal below, please could I have some feedback/comments? thanks in advance


Dear POPLA Assessor,

I am the registered keeper of vehicle reg XXXX XXX and I contend that I am not liable for the parking charge and the vehicle was not improperly parked. I wish to appeal against the notice on the following grounds:

1) No keeper liability established

The driver was present in the vehicle in question, on 3rd June 2015. At the time the driver received no windscreen ticket.
Additionally the Notice to Keeper is not compliant with POFA 2012:
- Firstly, it fails to state the period of parking: paragraph 8(2)(a)
- Secondly, it fails to identify the creditor and specify how and to whom payment or notification to the creditor may be made: paragraph 8(2)(h)
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.

2) Lack of BPA compliant signage – No Contract Formed with Driver.

Upon inspection of the evidence sent by Park Direct UK - the signage is extremely small as is the wording, and is placed 7 to 8 feet high on a wall making it extremely difficult to read.

There was no contract formed with the driver and if ParkDirect had wanted to communicate the area to be a no-stopping zone then they were required to sign it accordingly, with clearway signage, yellow hashings or red lines, and repeater 'no stopping zone' signs facing the driver.
This was covered by the Lead Adjudicator in the last POPLA Annual report where it was made clear that ordinary, wordy signs on walls are not suitable for a no-stopping zone. Additionally it is unclear as to the boundaries of the site supposedly being controlled by the signs.
Because their signs were beside wheelie bins, this operator has failed to communicate the terms of parking. Due to the small font, position on the wall and proximity to the bins, to any reasonable visitor it looks as if the white sign is not a parking sign but one related to the rules about the communal bins. And the yellow sign could not have created a contract as there is no offer, consideration nor acceptance that can flow to/from an Operator using such wording. No other signs are in the area, as far as I could see when checking the site, so I contend that the driver cannot be deemed to have entered into any contract nor breached any clearly-signed terms.
I contend that the signs and any core parking terms (PPC) are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])
Furthermore, upon subsequent inspection, the signs themselves do not identify, as required for a 'distance contract' within the Consumer Contracts(Information, Cancellation & Additional Payments) Regs
''(d) where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;
(e) the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints;''

In case Park Direct UK dismisses this appeal point, saying merely that this type of contract is exempt from these regulations, I contend it is not because the only exemptions are listed in the Regs and this 'contract' fits none of the stated exemptions. This is certainly not a simple, immediate ‘day to day transaction’ defined by the EU in the Guidance as ‘buying a cup of coffee or a newspaper’. In fact, providing parking spaces as a 'service' for a fee is specifically stated as covered by the Regulations, as shown here in the EU Guidance behind the original Directive upon which the UK Law is based:
'' Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.
For example, renting a parking space...is subject to the Directive. ''

3) Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013
These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''
From the EU Guidance behind the Directive upon which the UK Law is based:
''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''
Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed nor performed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all - the driver left).

4) The charge is a penalty and not a genuine pre-estimate of loss

The charge demanded far exceeds any loss to the landowner. If it exceeds any loss, it becomes a penalty. In their appeal response, ParkDirectUK addressed this issue referring to the court case Parking Eye vs Barry Beavis [2015] however they failed to mention that he Beavis case is currently being appealed. In failing to do so they have been misleading in their response and appear to be quoting the case as law.

In any event, the Parking Eye Vs Beavis case refers to very specific circumstances, none of which apply here. Parking Eye have not issued this charge in a free car park nor have they demonstrated any interest in the land. Additionally, Mr Beavis is alleged to have overstayed for a considerable amount of time, not the 42 seconds as evidenced in this case by Park Direct UK.
As a result I maintain that the charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. In the event that the POLPA assessor determines that the Beavis case is relevant to this case, it is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
Furthermore, POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.
The £100 charge asked for far exceeds the cost to the landowner as the driver only stopped for 42 seconds. The area was very quiet and no other vehicles were obstructed for the duration. Therefore the parking charge and the parking charge notice cannot be construed as anything but a punitive penalty. For this charge to be justified a full breakdown of the costs ParkDirectUK has suffered as a result of the car being stopped at the car park is required and should add up to £100.


5) Unlawful Penalty Charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

6) Lack of Proprietary Interest & non-compliant Contract with Landowner

ParkDirectUK lack of title or assigned interest in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis, as they are not the landowner and I have seen no evidence of a compliant contract with the landowner.
I put ParkDirectUK to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor (a requirement of the BPA Code of Practice).

7) Covert ticketing operation not BPA CoP compliant.

It would appear that the 'parking attendant' used a handheld ordinary camera/phone to take photographs and there was no windscreen PCN issued so the driver had no idea of any contract nor any alleged breach. I do not believe that the person was wearing any kind of uniform or ID showing they are involved with 'parking enforcement' while the parking attendant proceeded to secretly take photos of the vehicle without making themselves known to the driver, as evidenced by the fact the images are all taken at a distance. I require evidence that the person was properly trained in the BPA Code of Practice as is required for any self-ticketing, as the lack of grace period – and I will restate once again that evidence submitted shows that vehicle was stopped for a total of 42 seconds - and the secret pictures taken leads me to believe this was not a trained operative. Nor were they using a liveried vehicle. I contend that mobile phone pictures from a passer-by are neither reliable nor compliant with the BPA CoP as this is not a reasonable, consistent nor transparent operation.

8) Breach of DVLA KADOE contract. No audit trail and no reasonable cause.
Operators are only authorised under their KADOE contract with the DVLA to request keeper’s data if one of the following has arisen:

- where a PCN on a windscreen has already been issued, in the case of a manned car park.
OR
- where the issue of a PCN by post is planned (without a windscreen PCN) - this being allowed only in the case of an ANPR camera car park.

This case was neither. It lacks the required audit trail the DVLA insist upon from all AOS members.

This makes a mockery of the DVLA KADOE contract, their ICO registration, the POFA, the BPA CoP and Consumer Protection regulations. I believe this is a case that should also be raised to the attention of the Lead Adjudicator for his next report and for POPLA to forward to the BPA as an example of continuing expressly disallowed procedure.

9)Grace period insufficient despite BPA CoP

The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

The driver of the vehicle was in the car park according to the evidence provided by Park Directs first Parking Charge Notice and their subsequent response to a letter of appeal for a total of 42 seconds. This does not allow a reasonable grace period for the driver to notice a sign while driving, find a space, stop, read the sign and make a decision to leave. Park Direct’s response to letter of appeal does not address this at all, merely listing the number of small print or non-compliant signs on the site. This does not address the fact that 42 seconds falls well within any reasonable grace period to read one sign, never mind 33.

10) Business Rates and VAT would apply if the charges are contractual agreements for the provision of a service

Park Direct UK run a business in this car park for revenue and profit, and I now notice that their signage appears to try to create a contractual agreement for 'services'. I put Park Direct UK to strict proof that Business Rates are being paid to the Local Authority Valuation Office in respect of this 'contractual parking service' business, and that they are paying VAT to HM Revenue & Customs.
I contend that this operation is not a case of a contractual agreed fee to park at all - a firm cannot on the one hand prohibit 'stopping' and yet on the other try to paint the charge as a contractual fee in order to allow 'stopping'! If Park Direct are operating a contractual fee here then their contract with the landowner must show this to be the case. As evidence from Park Direct, as well as proving that Business Rates and VAT are being paid - I hereby require a VAT invoice to be sent with both copies of the evidence pack. No VAT invoice for my 'charge' will prove my point that this is not a genuine 'contractual fee for a service'.


On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

I respectfully ask the POPLA assessor to consider my points and evidence and order that this charge be cancelled.

Yours faithfully,